Question Doesn't the fact that prostitution is illegal imply that pleasure is not a considered a legitimate and significant moral good? Prostitutes are said to be people who provide nothing of value to society. Nothing of value? Really? Perhaps this is because our society has a deontological system of values? In a utilitarian standpoint wouldn't it not only be moral to make prostitution legal wouldn't it in fact be extremely immoral to make it illegal since sex is extremely pleasurable and in a utilitarian calculus more pleasure equals more good?

Accepted:
June 3, 2010

Comments

I think the historical fact of the matter is that prostitution is illegal (where it is illegal, which is not everywhere--there are lots of places where it is quite legal, including a few places in the US) is because from a religious point of view prostitution involved adultery, and adultery is regarded as a sin. We have lots and lots of laws with the idea of sin as their basis of origin, some of which even non-religious people would accept (e.g. laws against murder), and some of which non-religious people are increasingly opposed to, because their sole moral basis is in religious doctrine of some sort (e.g. laws against various kinds of sex acts between consenting adults). In some cases, people have found some secular reasons to give support for keeping laws that had the concept of sin as their historical basis (for example, what are called "blue laws," against the sale of alcoholic beverages on Sundays). So the question really is whether there are good non-religious reasons for keeping prostitution illegal (where it is illegal), or for making it illegal (where it is not already illegal).

These questions are debatable. On the one hand, you are right that positive consequences can be found for legalizing prostitution, at least in terms of pleasure. To these, we might also add the positive consequences of allowing people more freedom of choice in their personal affairs. If there are no other negative consequences of prostitution than the ones you mention, consequentialist reasoning would not support a ban on prostitution. But there are obvious flaws here. (1) There certainly are negative consequences to prostitution--to the families of the "johns," to the neighborhoods in which prostitution occurs, in the spread of STDs, and so on and so on. Are these bad enough for a legal ban on an activity that directly involves only consenting adults? As I said, that is a debatable point.

But consider also (2) that your consequentialist argument would also strip peeople of their sexual autonomy--the right to choose sexual partners. After all, it is certainly possible that A could want to have sex with B very much, such that the anticipated benefits to A would be very great, wwhereas the anticipated detriment to B might be only a certain degree of minor annoyance ("I'm not in the mood tonight, dear!") In such cases, should we reason that the anticipated positive consequences outweigh the anticipated negative consequences, such that it would be wrong for B to resist? Hoo boy!

You are right to think that there is deontological reasoning going on here. If it is a right that each of us have to practice sexual autonomy in the way I have been talking about, then it is unclear how a consequentialist account can be given for such a right. On the other hand, a ban on prostitution also interferes with the autonomy of the would-be prostitutes and the would-be johns, so there are deontological negatives to be confronted on that side of the debate as well.

Clear as mud, right?

(See also Thomas Pogge's response to a similar question on May 26, 2010.)

I don't think the illegality of prostitution has direct implications for whether or not we think pleasure is a moral good. We might think that pleasure is a moral good, but might ban an activity that promotes short term pleasure because we think (rightly or wrongly) that it results in a long term overall reduction in pleasure. So, even a group of hedonist utilitarians might ban prostitution if they think (correctly or incorrectly) that it spreads STDs too much (including deadly STDs) thereby producing a net decrease in overall long term pleasure.

Someone might also be in favor of banning prostitution because they think pleasure is of genuine worth, but merely of less worth than other goods (virtue, stable family relationships, etc.). You may also recall that Mill's version of utilitarianism weighs the 'quality' of pleasure and not just the 'quantity'. So, someone might think (correctly or incorrectly) that physical pleasure is of a lower quality than other pleasures and therefore should be weighed less.

I think the very complex pattern of the worldwide laws (and lack of laws) concerning prostitution does not fit the explanation offered by Nicholas Smith. If you look at the information concerning the legality of prostitution in 100 different countries at: http://prostitution.procon.org/view.resource.php?resourceID=000772 you will see that there prostitution is illegal in places that have never even had a widespread religious concept of 'sin' such as China, India, North Korea, and Thailand. At the same time, it is legal in many places where a high percentage of people identify themselves with traditional religions that view prostitution as 'sinful/religiously unacceptable' including Turkey, Italy, Poland, and Greece (though perhaps, high religious identification in these places does not entail that people think it is appropriate to legally enforce the morals of these religions). In any case, I think a better explanation for why prostitution is illegal in such a strange assortment of places (and not in others) depends on whether or not people judge it to be causing unacceptable harm. For example, despite the complete lack of anything like 'puritanical motivations' in Thailand, it is not difficult for people to see that the widespread prostitution there has harmed lots of people (such as women involuntarily trapped in the 'sex-trade') and has been responsible for spreading a lot of disease. Perhaps, even the religious values that often motivate attitudes against prostitution are ultimately grounded in the belief that it harms individuals and society in a tangible way.